Ask the Author: Interview with Professor Ronald K.L. Collins

Posted Wed, May 25th, 2011 5:14 pm by Christa Culver

Oxford University Press recently released Professor Ronald K.L. Collins's new book, We Must Not Be Afraid to Be Free: Stories of Free Expression in America, which he co-authored with Sam Chaltain. The book uses narratives about key moments in the development of First Amendment law to explore the relationship between freedom and fear in the context of free speech. Professor Collins kindly agreed to an interview on the book for SCOTUSblog.

What would you say is the central thesis of the book?

Though I’m not really a central thesis kind of person, one of the things that was particularly important in organizing the book was the relationship between freedom and fear — the idea is that unchecked fear of freedom on the one hand leads inescapably to tyranny. On the other hand, an unchecked adoration of freedom invites chaos or worse. But in the book, we don’t try to preach to the reader as to which side of that spectrum is best. We simply try to point out that freedom has its costs and profile various people to show how and why they have paid those costs. Too often, those who defend freedom defend it only after they have removed all of its costs. The challenge we wanted to point out is that defense of freedom is sometimes really dangerous.

How did you go about selecting the stories that went into the book? Apart from fitting the “freedom/fear” theme, what made these narratives particularly compelling? Why did you decide to exclude topics like obscenity and commercial speech?

The initial draft of the book did include these topics. We ended up cutting over two hundred pages from the book because it was simply getting too long, even though everything we cut was interesting and relevant. For example, we had to cut the chapter on Nike v. Kasky and commercial speech. It was impossible to cut down individual chapters and preserve the narrative structure and effect, so it was necessary to cut out entire chapters instead. As a result, we tried to keep the book as focused on political speech as possible.

One striking thing about the book is its blend of human narrative and law. How did you navigate the difficulty of striking a balance between conveying the human drama inherent in these stories and giving an adequately detailed account of First Amendment law? Was there a particular chapter in which it was challenging to walk this line due to the complexities of the doctrine?

Absolutely. The chapter on the “clear and present danger” test was a particular challenge. Since other books had already presented the narratives of Schenk v. United States and Debs v. United States, we decided to cover the Dennis case. It’s a great case, but because it took place in the 1950s, we had to describe the state of First Amendment law both before and after the case, which meant we had to go through a lot of doctrine. But the case was so colorful with the dynamic between the bold defendants and the equally bold trial judge that navigating the doctrinal complexities in the book was well worth it.

The chapter on defamation was also a real challenge to draft. Typically, when people think of defamation, they think of the New York Times v. Sullivan case. We were reticent to use that case, however, because there were already some excellent narrative accounts of the case. We also hesitated to use the case because often when New York Times v. Sullivan is taught in First Amendment classes, something very essential is left out: the result in that case simply would have never happened except for the fact that the case involved racial justice.

Is the balance you seek between narrative and law at all informed by your experience as a professor — bringing the law to life for your students?

Yes – it’s a struggle to bring in the human element in teaching the law. Often, the job of a law professor is seen as one of boiling down the law to doctrines or policies or conceptual or strategic moves. People are pawns in that game – it’s not really about them – instead, it’s about moves, doctrine, policy. Most students bring a laptop to class. As soon as a professor starts talking about people and players in the key cases, all the typing stops because students don’t think it’s important. One student asked me after class once whether a story I told about a particularly famous lawyer would be on the final exam. It’s really kind of hard — law school sucks the life out of a lot of these cases.

Something we try to demonstrate in the book is that context can make all the difference in the world. Like I mentioned, New York Times v. Sullivan never would have happened if you removed the struggle for racial justice. The same can be said for NAACP v. Alabama. Context is very much a part of the evolution of the law.

Furthermore, I happen to believe that the human element is very important in and of itself. I struggle with how to convey it in class. For example, tomorrow we’re covering Griswold v. Connecticut. The man who argued that case was named Thomas Emerson – one of the most prominent First Amendment scholars of his time. He taught at Yale, wrote one of the leading books on First Amendment law, and was connected with Walter Pollock and Cardozo. A lot of this context is simply discarded when these cases are taught to students.

No matter the kind of law you practice, a person walks into your office. That’s why I try to reincarnate as many of the people who animate these cases as possible.

What do you hope this book will accomplish in the post-9/11 world?

My aspirations here are very modest. If a half century from now, somebody walks into a museum and there are still actual hard-copy books in existence and someone takes my book from the shelf and is inspired in some way, I’ll be happy. Much of this goes back to the balance between freedom and fear. As a father, I tell my son to be careful what he wishes for – not to be reckless. Recklessness can create all sorts of problems and I understand as I’ve gotten older that something needs to be said for caution, restraint, fear.

But having said all of that, I guess where I come down personally is that the safe life is not worth living. I think that risk gives meaning to survival. I think that risk turns mere existence into a celebration of the joys of living, and true, there are dangers – but that’s what we have lawyers for – to protect us once we exercise our freedom.

We can err on the side of freedom because there are always enough people to defend fear. I always found that the image of somebody dancing “beneath the diamond sky with one hand waving free” from Bob Dylan’s “Tambourine Man” really captured this idea. My co-author, Sam, has a background in poetry, so that definitely affected the book as well.

Is there anything else you’d like to share with readers?

In keeping with the theme of bringing the narratives of key legal players to life, I’d just like to make a mention of Robert L. Carter and his story, which is set out in Chapter 6 of the book, “Saving the NAACP.” He’s been almost completely eclipsed by his partner there – Thurgood Marshall. He was very much in Marshall’s shadow, but Carter almost single-handedly saved the NAACP. He fought and won eight First Amendment cases in the Supreme Court. He’s just one of those giants whose name is not mentioned in a single First Amendment textbook and yet he’s the man who brought us the right of the freedom of association. It’s an outrage that his name isn’t better known in the First Amendment world.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.